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NY Bar 2014 > Negligence > Flashcards

Negligence Flashcards

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MBE flashcards
1
Q

Elements of negligence claim

A

Duty of care?
Breach of duty?
Causation (factual/legal)?
Damage?

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2
Q

Misdiagnosis of birth defect - damages?

A

Cost of care.

Not emotional distress.

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3
Q

Failed sterilization leads to pregnancy - damages?

A

None.

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4
Q

Degree of care?

A

As exercised by reasonably prudent person in same circumstances.
Objective test.
No allowance for subjective ability.

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5
Q

Degree of care: Exceptions to reasonable person test

A

Superior skill / knowledge - reasonable person with that skill
Physical characteristics - when relevant + expected to take reasonable precautions.

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6
Q

Children’s liability

A

0-4: no negligence
5-18: care of reasonable child of similar age, experience and intelligence under circumstances.
EXC: Child engaged in adult activity

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7
Q

Professional liability

A 
Exercise skill and knowledge normally possessed 
by other members of profession 
in good standing
in similar communities.
(empirical, not subjective)
Conform!
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8
Q

Premises liability: undiscovered trespasser

A

No duty (unforeseeable victim)

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9
Q

Premises liability: Discovered/anticipated

A

“Known man-made death traps”

(1) Artificial condition
(2) highly dangerous
(3) concealed
(4) known to D

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10
Q

Premises liability: Licensees (no econ benefit to D)

A

“Known traps”

(1) Concealed
(2) known to D

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11
Q

Premises liability: Invitee (econ benefit or open to public)

A

“Reasonably known traps”

(1) Concealed
(2) Known or should have known

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12
Q

NY Standard on premises liability

A

Reasonable prudence in the circumstances - depends on type of entrant.

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13
Q

Premises liability: Police and firefighters

A

No recovery when risk is inherent to job.

NY No limitation, except against employer or colleague

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14
Q

Child trespasser

A

Reasonable prudence re artificial conditions.

Increases due to “attractive nuisance doctrine”.

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15
Q

Statutory standard of care

A

(Borrow criminal statute)
Conditions:
(1) P member of class that statute protects
(2) Accident in class of risks that statute forbids
NOT APPLICABLE:
If compliance more dangerous than violation
or impossible

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16
Q

Affirmative duty to act?

A 
No.
EXC:
Pre-existing relationship
D caused peril
Duty: Reasonable, no heroics
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17
Q

Gratuitous rescuer

A

Liable for negligent damage!

NY Good Samaritan law applies for simple negligence; protects business from resuscitation by employees

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18
Q

Negligent infliction of emotional distress - 3 cases

A

(1) Near miss: D put P in danger zone + fear + physical manifestation of distress
(2) Bystander to death or serious injury + close family member
* NY* in zone of danger
(3) Relationship - transactional (false positive HIV)

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19
Q

Breach - elements

A

(1) factual act/omission
(ESSAY: “P will allege that breach was…”)

(2) theory why below standard
(“P will argue that act was unreasonable b/c…”)

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20
Q

Res ipsa - elements

A

(a) Accident of type normally associated with negligence
(b) of person in D’s position [had control of process]
(c) causation

21
Q

Multiple defendants, merged causes - causation test?

A

“Substantial factor” (rather than “but for”).

Each could have caused harm independently (but in reality merged and caused damage together).

22
Q

Unascertainable cause (eg. two quail hunters) - liability?

A

Burden of proof on defendants to show which is liable. If unsuccessful - both are liable.

23
Q

Proximate cause in “direct cause case”

A

Foreseeability.

Not freakish/bizarre results even when immediate.

24
Q

“Indirect cause cases” - 4 examples of liability

A
  1. Intervening: medical malpractice
  2. Intervening: negligent rescue
  3. Intervening: protection/reaction forces (eg. stampede)
  4. Subsequent disease/accident

Look for: connection btwn breach and damage.

25
Q

Eggshell skull principle vs foreseeability?

A

Initial injury must be foreseeable, then D liable for all damage even if unforeseeable.

26
Q

Insurance payments deducted from damages?

A

MBE: No.

NY Yes!

27
Q

Equitable remedies (injunctions) - when granted?

A 
No adequate "remedy at law"
and
Protectable right
and
Enforceable (no complex supervision...)
and
BALANCE OF HARDSHIP in P's favor
28
Q

Equitable remedies - 3 defenses

A
  1. P’s unclean hands
  2. Laches (D relied on acquiescence)
  3. 1st amendment (can’t stop free speech)
29
Q

Preliminary injunction - when?

freeze situation

A
  1. Likelihood of success on merits
    and
  2. Prevent irreparable harm.
30
Q

Affirmative defenses for negligence - two types

A
  1. “Classic contributory” - P making proximate contribution completely barred from recovery [ABOLISHED, RARELY USED]
  2. “Comparative negligence” - damages deducted acc to relative contribution.
31
Q

“Comparative negligence” - two types

A
  1. Pure: mathematical, doesn’t matter how high P’s portion is. (NY) [ASSUME ON MBE]
  2. “Modified/partial” - if P’s contribution >50% no recovery [ONLY WHEN P GUILTY OF CRIME]
32
Q

Assumption of risk in sporting activities

A

NY

Duty for recklessness, not reasonable care.

33
Q

Implied assumption of risk

A

Reduces recovery.

Conditions: D knew of risk, voluntary consented by conduct to bear risk

34
Q

Strict liability - injury caused by animal?

A

Domesticated - no, unless known to be vicious

Wild - always

35
Q

Strict liability - abnormally dangerous activity - conditions

A

Foreseeable risk of serious harm, even when care exercised
and
Not in common usage in community

36
Q

Strict liability - product liability - conditions

A

D is merchant dealing in goods of same type (incl. manufacturer, wholesaler, lessor)
and
Defective product
and
Not altered by P
and
D making foreseeable use (even if unintended)

37
Q

Defective product - 3 types

A
  1. Manufacturing defect: differs from other products on assembly line
  2. Design defect: could be built (a) safer, (b) cost-effectively, and (c) practically.
  3. Information defect: inadequate warning for inherent risk.
38
Q

Defective product - conformity to regs

A

Failure to conform - proves defective design.

Conforms - non-conclusive evidence only

39
Q

Defense in strict liability claim

A 
Assumption of risk
Comparative fault (percentages...)
40
Q

Strict liability prima facie case

A
  1. D’s activity imposes absolute duty to make safe
  2. Dangerous aspect is cause of injury
  3. Damage
41
Q

Nuisance - element

A

Ability to use property disturbed to unreasonable degree.

42
Q

Car owner liability for user?

A

MBE: No, except if running errand for owner.

NY Vicarious liability when driving with permission (and no-fault insurance applies)

43
Q

Parent liability for child’s actions?

A

MBE: No

NY up to $2500

44
Q

Spouse claim for damages?

A

“Loss of consortium”: services, society, marital relations.

45
Q

Workers comp: Liability? Damages?

A

Employer strictly liable.
No pain & suffering
Employee cannot sue in court

46
Q

Workers comp: Secondary claims

A

Only employer can sue another on-site contractor or machine manufacturer.

47
Q

Workers comp: Independent contractor?

A

No, only employee.

48
Q

Workers comp: What is not covered?

A

Due to own intoxication;
Self-inflicted;
Voluntary off-duty athletic activity
(Illegal acts on the job are covered!)

NY Bar 2014 (18 decks)

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